State v. Dah

NOT DESIGNATED FOR PUBLICATION

No. 121,433

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAW DAH,
Appellant.

MEMORANDUM OPINION

Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed April 9, 2021.
Affirmed in part, reversed in part, sentence vacated, and remanded with directions.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., BUSER, J., and WALKER, S.J.

PER CURIAM: Jaw Dah appeals after a jury convicted him of two counts of
aggravated criminal sodomy, two counts of battery, aggravated battery, aggravated
assault, three counts of abuse of a child, intimidation of a witness, and criminal threat.
We find that Dah's criminal threat conviction must be reversed and remanded to the
district court because it is impossible to determine from the record on appeal whether he
was found guilty of making an intentional or reckless threat. Based on our review of the
record, we find no other reversable error. Thus, we affirm in part, reverse in part, and
remand with instructions.

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 FACTS

This case arises out of several incidents of violence allegedly committed by Dah
against his wife and their two minor children over a period of approximately five years.
Dah met his wife in a refugee camp in Thailand, and the couple married in 2007. The
family immigrated to the United States from Myanmar, and they ultimately ended up
living in Garden City. One of the children was born in Thailand in 2008, and the other
was born in Kansas in 2014.

On December 11, 2017, Dah's wife went to Family Crisis Services in Garden City
and spoke to Maria Ruiz—a survivor services advocate—through a Burmese translator.
She told Ruiz that Dah had choked her and hit her in the head with a cell phone. Dah's
wife also told Ruiz about previous incidents in which Dah had choked and raped her.
Moreover, she reported that Dah hit the children.

Dah's wife indicated that she was afraid that Dah would kill her if he found out she
was at the crisis center or that she had told anyone about his abuse of her and their
children. Ruiz provided safety planning to Dah's wife and offered to have her and the
children move into a shelter or a safe house. However, Dah's wife said that she was not
ready to move into a shelter at that point in time and indicated that she would contact
Ruiz if she believed further intervention was necessary.

Two days later, Dah's wife returned to Family Crisis Services and spoke with Ruiz
a second time. She told Ruiz that she and her husband had met with a priest and
"everything was okay now." Nevertheless, on February 9, 2018, Dah's wife returned to
Family Crisis Services a third time and told Ruiz that Dah had threatened to kill her and
the children. This time, the staff at the Family Crisis Center helped place her and the
children into a safe home that day. Moreover, Ruiz assisted Dah's wife in obtaining a
protection from abuse (PFA) order against him.

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 Subsequently, Ruiz assisted Dah's wife—working with a Burmese translator—in
writing out a timeline of significant events that had occurred in the family home. Around
the same time, Dah filed a petition for divorce. On April 6, 2018, Ruiz reported the
alleged incidents to the police, and Officer Joshua Meinzer responded to Family Crisis
Services.

Officer Meinzer spoke with Dah's wife who reported—with the assistance of a
translator—that she had been raped by Dah in October 2017. The officer also spoke to
Ruiz, who told him that she helped Dah's wife create a "packet of [incidents]"
documenting the facts supporting multiple alleged crimes dating back to 2013. Upon
seeing the packet of information, Officer Meinzer contacted Detective Lana Urteaga to
assist in the investigation.

Detective Urteaga arrived at Family Crisis Services and spoke briefly with Dah's
wife with the help of a telephone-based interpretation service. The detective then had her
come to the law enforcement center later that day for a more thorough interview. A few
days later, Detective Urteaga also interviewed the two Dah children about the alleged
ongoing abuse in the home.

On April 12, 2018, Detective Urteaga interviewed Dah at the law enforcement
center with the assistance of a Burmese translator. On the same day, a search warrant was
executed at the Dahs' residence. The officers who participated in the search seized items
that they believed were relevant to the alleged incidents of abuse. During the search of
the home, a rifle was discovered in a closet where Dah's wife had said it was kept. In
addition, knives were also found in a Bud Light box in a corner of the kitchen and twelve
belts were seized.

While at the Dahs' residence, Officer Knoll went to the basement and seized a
hair-cutting kit from a downstairs bedroom. The room was separately rented from the

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landlord by Gerardo Soriano, but he was not present when the search warrant was
executed. Officer Knoll later spoke with Soriano—with the assistance of a Spanish-
speaking officer—and Soriano indicated that he was aware the woman who lived upstairs
had been stabbed on her wrist. Dah's wife explained to Soriano that Dah had stabbed her.

On June 29, 2018, the State charged Dah with twelve criminal counts and
subsequently another count was added. The amended criminal complaint included the
following charges: Count I-A, aggravated battery; Count II-A, aggravated intimidation
of a witness or victim; Count III-A, aggravated battery; Count IV-A, aggravated assault;
Count V-A, abuse of a child; Count VI-A, abuse of a child; Count VII-A, aggravated
battery; Count VIII-A, aggravated domestic battery; Count IX-A, abuse of a child; Count
X-A, aggravated criminal sodomy; Count XI-A, aggravated intimidation of a witness or
victim; Count XII-A, aggravated criminal sodomy; and Count XIII-A, criminal threat.

Prior to trial, Dah filed a motion to suppress the statements that he provided to
Detective Urteaga during the investigation. Dah claimed his statements "were not
voluntarily given, were obtained through a violation of Miranda v. Arizona, and in
violation of his Sixth Amendment right to counsel." In ruling on the motion, the district
court recognized that some of "the translation was only partial and inaccurate as
conveyed to the examining officer and recorded on the tape." The district court concluded
that if the State sought to use any of the statement at trial, "fairness demands that each
translation is subject to challenge for accuracy and statements made by the officer during
the interview were misleading or false and cannot be used by the Jury as an accurate
statement of the facts of this case."

On March 18, 2019, the district court commenced a four-day jury trial. During the
trial, the State presented the testimony of 10 witnesses—including Dah's wife and the
investigating officers—and introduced 14 exhibits into evidence. However, Dah's
interview with Detective Urteaga was not admitted into evidence. The defense presented

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the testimony of 7 witnesses and introduced 13 exhibits into evidence. Dah did not
testify.

Prior to submission of the case to the jury, the district court dismissed a count of
aggravated domestic battery. After deliberation, the jury convicted Dah of two counts of
aggravated criminal sodomy, two counts of battery, aggravated battery, aggravated
assault, three counts of abuse of a child, intimidation of a witness, and criminal threat.
The jury acquitted him of one count of aggravated intimidation of a witness. Before
sentencing, Dah filed a motion for judgment of acquittal, a motion to set aside the
verdicts, and a motion for a new trial. The district court denied all three posttrial motions.
The district court also denied Dah's motion for a downward dispositional and durational
departure. Ultimately, the district court sentenced Dah to a controlling term of 155
months' imprisonment.

Thereafter, Dah filed a timely notice of appeal.

ANALYSIS

On appeal, Dah raises five issues. First, whether the district court erred in allowing
the State to introduce evidence of prior incidents of misconduct without first analyzing
the evidence under K.S.A. 2017 Supp. 60-455. Second, whether his criminal threat
conviction should be reversed because it is impossible to determine from the record if he
was convicted of intentional or reckless criminal threat. Third, whether the district court
erred by failing to give a unanimity instruction regarding one of the charges of abuse of a
child. Fourth, whether the State presented sufficient evidence at trial to support that
conviction. Fifth, whether his choice not to testify was voluntary.

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Evidence of Prior Acts of Misconduct

Dah contends that the district court erred in its admission of instances of prior
misconduct without first analyzing the evidence under K.S.A. 2017 Supp. 60-455.
Significantly, Dah presents this issue for the first time on appeal. As the State accurately
points out, Dah did not object to the admission of this evidence at trial nor did he ask the
district court to analyze it as prior acts of misconduct under K.S.A. 2017 Supp. 60-455. In
the event we find that Dah properly preserved this issue, the State alternatively argues
that the admission of this evidence was harmless based on the other evidence it presented
at trial.

Dah candidly acknowledges that he failed to preserve this issue below as required
by Kansas Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34). This rule requires an
appellant to explain why an issue that was not raised below should be considered for the
first time on appeal. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).
Although Dah argues that this issue should be addressed for the first time on appeal
because it involves a question of law and because consideration of the issue is necessary
to serve the ends of justice or to prevent denial of fundamental rights, we do not find that
these exceptions are applicable under the circumstances presented.

First, we find the admission of K.S.A. 2017 Supp. 60-455 evidence is not solely a
question of law based on consideration of proven or admitted facts. Even if the admission
of evidence is found to be erroneous, the extent of the error must be considered in light of
the totality of the evidence admitted at trial to determine if the error was harmless. See
State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221
(2012) (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705,
reh. denied 386 U.S. 987 [1967]). As the Kansas Supreme Court found in State v.
Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009), this exception does not apply to a
challenge to the admission of evidence from which there was no timely objection.

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 Likewise, we find the exception allowing consideration of an evidentiary issue
because it is necessary to serve the ends of justice or to prevent the denial of fundamental
rights is not applicable in this case. In State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558
(2010), our Supreme Court found that "we have consistently been refusing to review an
evidentiary issue without a timely and specific objection even if the issue involves a
fundamental right." See State v. Logsdon, 304 Kan. 3, 28, 371 P.3d 836 (2016) (rejecting
claim that exception applied to the erroneous admission of evidence when there was no
timely or specific objection).

Dah complains about evidence of five instances of his prior misconduct being
admitted at trial: (1) Ruiz testified that Dah's wife told her that Dah had raped her; (2)
Dah's wife testified that Dah forcefully had sex with her—both vaginally and anally; (3)
Dah's wife testified that Dah had falsified her signature on a tax document; (4) Dah's wife
testified that on June 22, 2014, Dah struck their son on his back; and (5) Dah's wife
testified that Dah threatened—"all the time"—to use his rifle against her. As discussed
above, Dah did not lodge an objection to any of this evidence.

K.S.A. 60-404 provides:

"A verdict or finding shall not be set aside, nor shall the judgment or decisions
based thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection."

In other words, a party must make a contemporaneous and specific objection to the
admission of evidence in order to preserve the issue for appeal. K.S.A. 60-404; State v.
Dupree, 304 Kan. 43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016); State v. King,
288 Kan. 333, 348-350, 204 P.3d 585 (2009) (stressing the importance of the requirement
of an objection under K.S.A. 60-404). The purpose of the statute requiring a timely and
specific objection is to give the district court the opportunity to address the issue so as to
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conduct the trial without admitting tainted evidence. Also, a contemporaneous objection
reduces the possibility that a jury's verdict will be reversed and that a new trial will be
ordered. 288 Kan. at 342. Hence, we conclude that consideration of this issue is
precluded based on Dah's failure to make a timely and specific objection at trial.

Finally, even if there was error, we find that it was harmless. See State v. Lowery,
308 Kan. 1183, 1235, 427 P.3d 865 (2018) (The erroneous admission or exclusion of
evidence is subject to review for harmless error under K.S.A. 2020 Supp. 60-261.) A
review of the record on appeal reveals that the State presented overwhelming evidence of
Dah's guilt at trial. Specifically, the State presented the testimony of Dah's wife, one of
his children, the investigating officers, and other corroborating witnesses. In addition, the
State proffered several corroborating photographs and other items of physical evidence—
including hair-cutting scissors, knives, and a rifle—and the district court admitted those
items into evidence.

Moreover, the five instances of alleged prior misconduct of which Dah complains
are not separate or independent occurrences. Instead, they were similar to or part of the
res gestae of the criminal conduct with which Dah was charged. Consequently, viewing
the record on appeal in its entirety, we find that the alleged errors regarding the admission
of evidence of prior misconduct did not affect the jury's verdict.

Criminal Threat Conviction

Next, Dah contends that his conviction for criminal threat in violation of K.S.A.
2017 Supp. 21-5415(a)(1) should be reversed. He bases his argument on State v.
Boettger, 310 Kan. 800, 822-23, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1956
(2020), in which the Kansas Supreme Court ruled that the provision of the criminal threat
statute relating to reckless conduct is unconstitutional. See State v. Johnson, 310 Kan.
835, 842, 450 P.3d 790 (2019), cert. denied 140 S. Ct. 1956 (2020). Specifically, our

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Supreme Court held in Boettger—which was decided after the jury convicted Dah in this
case—that the provision K.S.A. 2018 Supp. 21-5415(a)(1) allowing a conviction if a
threat of violence was made in reckless disregard for causing fear was unconstitutionally
overbroad. Boettger, 310 Kan. at 803.

Here, the district court—which did not have the benefit of the Boettger decision to
guide it—instructed the jury that it could convict Dah if it found he communicated a
threat "with the intent to place another in fear" or if it found he did so in "reckless
disregard of the risk of causing [fear] in another." Furthermore, the verdict form did not
ask the jury to decide whether Dah was guilty of intentional or reckless criminal threat.
Notwithstanding, the State argues that any error in instructing the jury regarding reckless
criminal threat is harmless.

We find guidance on the harmless error issue from the Kansas Supreme Court's
decision in Johnson, 310 Kan. at 842. Similar to the present case, the State charged the
defendant in Johnson with intentionally or recklessly making a criminal threat. Also
similar to this case, the district court instructed the jury as to both alternatives without
asking it to distinguish between intentional and reckless conduct. After applying the
constitutional harmless error standard, our Supreme Court concluded that the error was
not harmless because the jury "could have believed the [defendant's] statements were
made with a reckless disregard for whether they caused fear." 310 Kan. at 843-44 (citing
Chapman, 386 U.S. at 23-24 [defining the constitutional harmless error standard]).

More recently, in State v. Lindemuth, 312 Kan. 12, 470 P.3d 1279 (2020), the
Kansas Supreme Court followed its analysis in Johnson. In particular, our Supreme Court
held that where the jury was instructed on both the intentional and reckless versions of
the criminal threat statute, the record must clearly show that the jury concluded the threat
was made intentionally rather than recklessly in order for the error to be harmless. After
reviewing the record, the Supreme Court concluded that the record on appeal did not

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support this distinction. As such, just as our Supreme Court had done in Johnson, it
reversed Lindemuth's criminal threat conviction, vacated his sentence, and remanded the
charge to the district court for a new trial. 312 Kan. at 19.

Returning to the present case, the State asserts that it made an election of
intentional threat during closing arguments. Based on our review of the record, however,
this is—at best—unclear. Certainly, there is evidence in the record on which a reasonable
fact-finder could have found Dah to be guilty beyond a reasonable doubt of intentional
criminal threat. Yet we are not in a position to find that the jury could not have found
Dah guilty of making threats with a reckless disregard for whether they caused fear. The
record reveals that Dah made similar threats on many occasions and had not followed
through on those threats. So, there is a possibility the jury could have found Dah's
conduct to be reckless rather than intentional. Accordingly, we conclude that Dah's
criminal threat conviction must be reversed, his sentence vacated, and the case remanded
to the district court for a new trial on the charge of intentional criminal threat.

Failure to Give Unanimity Instruction

Dah also contends that the district court committed reversable error by failing to
give an unanimity instruction on the charge that he "inflict[ed] cruel and inhuman
corporal punishment" on one or both of his children on August 12, 2017. The State
presented evidence at trial that Dah struck both of his children on their bare backs in the
bathroom with a plastic clothes hanger because he was angry that they were making too
much noise while he was trying to sleep. Because he allegedly struck both children, Dah
argues that the district court should have given an unanimity instruction.

In response, the State contends that the facts supporting the child abuse conviction
are not separate or distinct acts. Additionally, the State argues that Dah has failed to show
clear error or that he was prejudiced by the district court's failure to give a unanimity

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instruction. Rather, the State suggests that Dah actually benefitted by the State's failure to
file two counts of child abuse arising out of the corporal punishment incident that
occurred on August 12, 2017.

Dah concedes that he did not to request an unanimity instruction at trial. When a
jury instruction is not requested, we apply a clearly erroneous standard of review. See
K.S.A. 2020 Supp. 22-3414(3); State v. Butler, 307 Kan. 831, 845, 416 P.3d 116 (2018).
Under this standard of review, reversal is required only if an instruction error occurred
and we are firmly convinced that the giving of the instruction would have changed the
jury's verdict. See State v. McLinn, 307 Kan. 307, 318, 409 P.3d 1 (2018). The burden to
show clear error under K.S.A. 22-3414(3) rests with Dah. See State v. King, 299 Kan.
372, 379, 323 P.3d 1277 (2014). In other words, Dah must establish the degree of
prejudice necessary for reversal. State v. Littlejohn, 298 Kan. 632, 646, 316 P.3d 136
(2014).

Here, even if we assume that the district court erred in failing to give an unanimity
instruction, we find that the error was not clearly erroneous because we are not firmly
convinced that the alleged error changed the outcome of the trial. As indicated above, the
State presented evidence at trial that Dah became angry while he was trying to sleep
because he believed the children were making too much noise while taking their baths.
While he was upset, Dah went into the bathroom and struck both children on their bare
backs with a plastic clothes hanger.

Dah argues that this evidence "is really no different than what happens to a child
that is spanked" and that "spanking is accepted by many as a proper means of physically
disciplining a child." See L.E.H. ex rel. D.L.H. v. Kansas Department of Social and
Rehabilitation Services, No. 111,576, 2015 WL 5036725, *7 (Kan. App. 2015)
(unpublished opinion) ("Spanking a child is not illegal under Kansas law; nor is a mere
spanking automatically abuse.") Although we agree with the panel in L.E.H. that

11
spanking a child is not in and of itself abusive, the evidence in the record shows that Dah
inflicted more than a "mere spanking." Rather, the State presented evidence that Dah, a
grown man, hit the children in anger with a clothes hanger on their bare skin.

As such, we find that Dah has failed to show prejudice requiring reversal. Here,
the evidence supporting the act of child abuse that occurred on April 12, 2017, was
essentially the same. Dah struck both children with the clothes hanger within a very short
period of time in the same bathroom. Dah's wife testified that both children said that the
beating hurt, and they both cried in response. Dah's daughter testified that it hurt and left
a mark on her back.

If the jury believed that the State provided sufficient evidence to show beyond a
reasonable doubt that Dah struck one of the children, it is likely the jury would have
believed that the State provided sufficient evidence to show beyond a reasonable doubt
that he struck the other child. The only distinction in the testimony is that one of the
children testified that the abuse left a mark on her back, but she was not sure whether her
brother also had a mark on his back. However, the degree of injury is not an element of
the crime charged in this count. See K.S.A. 2017 Supp. 21-5602(a)(3). Under these
circumstances, we are not firmly convinced that the jury would have reached a different
verdict but for the alleged error.

Sufficiency of Evidence of Child Abuse

Dah also challenges the sufficiency of the evidence in support of his conviction for
abusing the children on August 12, 2017. Once again, he attempts to excuse his actions
by arguing that "[i]t is difficult to see how the alleged act in the instant case was in any
way more harmful than a spanking" and suggesting that "[o]nly one blow with the hanger
was administered, which could be much less than the punishment given in any typical

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spanking." In response, the State maintains that sufficient evidence supports the
conviction.

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). It is only in rare
cases where the testimony is so incredulous that no reasonable fact-finder could find guilt
beyond a reasonable doubt that a guilty verdict will be reversed. State v. Torres, 308 Kan.
476, 488, 421 P.3d 733 (2018).

Dah cites us to a case in which the former Kansas Department of Social and
Rehabilitation Services found that an allegation of child abuse against the father was
unsubstantiated. See L.E.H., No. 111,576, 2015 WL 5036725, at *3. As discussed in the
previous section of this opinion, we do not find the evidence that the State presented in
this case to be a matter of "mere spanking" of a child for disciplinary reasons. Rather, the
State presented evidence that Dah angrily hit his children on their backs with a plastic
clothes hanger.

"[T]he terms cruel and inhuman provide reasonable and definite standards, and
common meanings that can be understood and contemplated by a jury." State v. Burton,
No. 114,791, 2016 WL 6822225, at *5 (Kan. App. 2016) (unpublished opinion) (citing
State v. Fahy, 201 Kan. 366, 370, 440 P.2d 566 [1968]). See State v. Hupp, 248 Kan. 644,
Syl. ¶ 12, 809 P.3d 1207 (1991) (reaffirming Fahy). As such, the determination of
whether Dah knowingly inflicted cruel and inhuman physical punishment was one for the
jury to make. Viewing the evidence in the light most favorable to the State, the record

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contains sufficient evidence to support a rational fact-finder's verdict of guilty on this
count for abuse of a child.

Dah's Decision Not to Testify at Trial

For his final issue, Dah claims that the district court's pretrial ruling on a motion to
suppress his statement to the police "was improperly used as leverage to prevent [him]
from testifying in his own behalf at trial." Dah's argument focuses almost exclusively on
the district court's ruling on the motion to suppress evidence, which has not been
appealed. Because Dah raised this issue for the first time in his posttrial motions, our
review of this issue is limited to whether the district court abused its discretion in denying
his posttrial motions. See State v. Pruitt, 310 Kan. 952, 972, 453 P.3d 313 (2019).

As discussed in the facts section of this opinion, Dah sought to suppress his
statement to the police prior to trial. In doing so, he argued that the interpreter who
assisted the police during the interview was not qualified and that some of the interview
had not been properly translated. The district court agreed that some of "the translation
was only partial and inaccurate" and determined that if the interview was going to be
used by the State at trial, "fairness demands that each translation is subject to challenge
for accuracy and statements made by the officer during the interview were misleading or
false and cannot be used by the Jury as an accurate statement of the facts of this case."

In other words, the district court recognized that there were at least some problems
with the translation but decided to wait until trial to determine what portions of the
interview—if any—would be admissible. At trial, the State agreed not to use the
interview during its case-in-chief. Although the State reserved the right to potentially use
portions of the statement to impeach Dah's testimony on cross-examination if he opened
the door during his direct testimony. Dah did not testify, and the State never attempted to
use the interview at trial. Accordingly, it would be pure speculation for us to predict how

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the district court may have ruled had the State attempted to use any or all of Dah's
interview at trial.

On the last day of the trial, defense counsel brought up her understanding of a
private discussion that she previously had with the prosecutor about the use of Dah's
statement. Defense counsel made the following representation to the district court about
its substance:

"[M]y understanding is if we put my client on the stand, the State will attempt to
use his statements to—with Detective Urteaga. We—we discussed then I would go ahead
and make an objection to accuracy, as is consistent with the ruling from this court. After
my motion was filed, I would request a continuance and get time to get a transcript [of
Dah's statement using a new translator] made. So I don't know if that's something you
could give us some direction on."

The district court did not desire to give an advisory opinion on the issue, and it
denied the request for a continuance. The district court stated:

"If you do not have an individual that has already done an interpretation and
given you an English version of what his or her interpretation of the Burmese statements
that your client has made, I would suggest that it's probably too late. This trial will not be
delayed for that purpose alone."

After further discussion, the district court granted a recess so defense counsel
could speak with Dah. In doing so, the district court reminded the parties that "this is an
issue that was pretty apparent to you months ago." After the recess, the defense rested
without calling Dah to testify.

In his posttrial motions to set aside the jury verdicts, the motion for a new trial,
and the motion for judgment of acquittal, Dah argued for the first time that the district
court's decision on the motion to suppress effectively denied his right to testify at trial. In

15
a hearing on the posttrial motions, Dah provided no additional evidence or testimony in
support of his argument that the district court had forced him to forfeit his right to testify.
In responding to Dah's argument regarding this issue, the State claimed that the decision
not to testify was a matter of trial strategy and was his decision to make. The district
court agreed with the State's position and denied the posttrial motions.

Based on our review of the record, we find that Dah has not shown that the district
court abused its discretion or that a new trial is warranted in the interest of justice. See
K.S.A. 2017 Supp. 22-3501(1); State v. Pruitt, 310 Kan. at 972. Even though we find that
the district court's decision to wait to see how the testimony came in before ruling on
which portions of Dah's statement—if any—may have been admissible was reasonable,
the district court's decision on the motion to suppress is collateral to the primary issue
presented. Rather, the primary issue before us is whether the district court erred in
denying his posttrial motions in which he raised this issue.

Although defense counsel can and should offer advice to his or her client, the final
decision regarding whether or not to testify at trial rests solely with the defendant in a
criminal case. See State v. Carter, 270 Kan. 426, 439, 14 P.3d 1138 (2000); State v.
Hargrove, 48 Kan. App. 2d 522, 534, 293 P.3d 787 (2013). In this case, a review of the
record shows that the State agreed not to use Dah's statements to the police in its case-in-
chief and it honored that agreement. However, defense counsel attempted to get the State
to also agree not to use any portion of Dah's statement in the event that he chose to
testify. Understandably, the State did not agree because it was possible that Dah might
say something during his testimony to open the door for use of some of the statement to
impeach Dah during cross-examination.

After consulting with his attorney, Dah made the decision not to testify. Likewise,
there is no evidence in the record to establish that Dah was somehow coerced or forced

16
into making this strategic decision. Under these circumstances, we do not find that the
district court abused its discretion in denying Dah's posttrial motions.

Affirmed in part, reversed in part, sentence vacated, and remanded with directions.

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